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I have been served with a petition that says i cant take my child out of suffolk county. my court date is in a few weeks.

Smithtown, NY | April 26, 2012 4:19pm

I want to move with my child.. Can i still leave? Since technically the judge hasnt ordered this. I have also filed a petition for custody and i am waiting on a court date, I live with my BF so if im still there by the court date given to me my petition will be dismissed. What are my options?? Please HELP!! I

If the Order to Show Cause portion of the Petition you were served with, which is signed by the Judge, has an ORDERED paragraph stating that the child cannot be removed from Suffolk County, then as this is an immediate temporary restraint ordered by the court, you cannot remove the child from the county absent a written and duly executed and acknowledged document signed by both parents of the child or approval of the court.

Typically relocation to another state requires an agreement between the parents or specific court approval. Is there already a custody order, perhaps from a prior divorce action? If so, and there is an order or stipulation, then this may clear up the issue on relocation, particularly if you are only looking to move locally. Sometimes agreements may contain language on relocation parameters, such as permissible distance of the move.

Despite where you are living currently, you will need to show up in court on the appearance date for both petitions, or else you risk having your petition dismissed and being defaulted on the other petition with which you were already served.

FYI since this is a custody matter, your current BF may be an issue raised during the proceedings.

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Asker

Posted April 27, 2012 3:24pm

I am not leaving the state, i am just leaving suffolk county. There is no other order in place. I do not want my petition to be dismissed so the clerk told me I have to leave before MY court date which is unknown at the moment. However, in regards to me leaving now, the clerk i saw said that i can leave since i havent went before a judge yet....

Without the guidance of a prior agreement or order, it may be worth attempting to work out a current agreement with respect to the relocation. I do not know how far you plan on moving from where you currently reside with the child nor the distance this will be from the other parent as compared to how close/far you live currently from the other parent. A lot of times the parties can agree to a move, especially for a move between neighboring counties, with a mileage limit on how far you can move, considering that the other party may be burdened with respect to parenting time with the child.
I do not know what exactly you spoke to the clerk about, but if you already filed a petition in suffolk county then regardless of where you moved or when you moved, you will need to appear in the suffolk county court on the date of your petition or any other adjourn date, absent having the venue changed to a court in your new county. If you do not appear and/or properly request an adjournment, your petition may be dismissed.
With respect to leaving now, in your initial question you posted that the petition says you cannot leave suffolk county with the child. Sometimes in the order to show cause portion of the petition (normally the first few pages), there will be an ORDERED paragraph which functions as an immediate temporary order by the court. In this case, you need to check and see if there is an ORDERED paragraph directing you not to remove the child from suffolk county, and if there is then this functions as a court order even though you have not physically appeared before a judge yet. It can be modified by the court on the court date or possibly through a written, duly executed and acknowledged agreement by both parties. Normally this type of restriction is binding on both parties, however, I do not have the paperwork so I cannot say for sure.

Attorney Gulino has given you good, detailed advice. I agree. Please be careful about taking "advice" from the court clerks--it is very easy for a misunderstanding to complicate matters, and the clerks have no duty or authority to give you correct information. I would strongly discourage you from leaving the county even if you think the judge hasn't yet "ordered" you to stay. Now that you are on notice there is a pending dispute, the court may treat you harshly if you leave under the current circumstances. At the very least, consult with a local attorney to review all your rights, options and obligations before you take any further action. Sometimes a telephone consult will be enough to get started. You can find attorneys in your area by searching among the profiles here on AVVO. Good luck!

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